Starr puts his gloss on history

December 6, 1999

WASHINGTON
— This report is from a breakfast held by the Monitor with Mr. Starr and a group of Washington reporters and columnists. Monitor-hosted breakfasts with newsmakers have been a Washington tradition for more than three decades.

As the central figure in one of the most important and bizarre episodes in American history - the investigation and impeachment of a president - former independent counsel Kenneth Starr to this day is either vilified or canonized for the role he played in the $40 million probe.

Now, two months after stepping down as independent counsel, he is trying to put his own shading on history - and it includes both admissions of tactical mistakes and justification of what he did.

Mr. Starr insists that his lengthy probe of President Clinton was at all times professional, ethical, and proper. While acknowledging errors, he says he and his legal team never went over the line in their investigation of the president.

Clearly hoping to clarify his role, which was loudly denounced by Clinton supporters, Starr also indicates that he retains hopes of serving in the future on the US Supreme Court. But he concedes that winning Senate approval for his nomination would be "a rather uproarious, lively confirmation process."

Starr made his comments at a Dec. 3 Monitor breakfast meeting for Washington-based newspaper reporters. Asked whether he would like to see Mr. Clinton accept responsibility for actions that led to the president's impeachment, the judge says:

"Far be it from me to suggest a specific avenue of redress. But in some way, through some manifestation of genuine sorrow and some acceptance of responsibility, the president should get himself right with the law." Only then would history "take a much more benign look" at his eight-year presidency, Starr says.

Hours later, White House spokesman Joe Lockhart responded to Starr's suggestion by pointing to a trash can and saying: "I will put that advice in the same file as much of the unsolicited advice we get here."

As for his own mistakes, Starr singles out two in particular - maintaining poor relations with the media and expanding the investigation far beyond its original goals.

Rather than keeping reporters apprised of the investigation, Starr says he "deliberately chose a course of not holding press conferences.... By my silence, I think I allowed the impression to develop that this was ... a vendetta" - a charge he terms "untrue."

Starr says he also erred by allowing the investigation to expand - at the request of the Department of Justice - well beyond its original goals. That gave the impression that he was on a personal campaign to get Clinton.

*Starr rejects charges that he was an overzealous prosecutor - a "totally bogus and bum rap," in his words. Expressing "sorrow" for those caught in the "maw of the criminal-justice process," he says he tried to spare witnesses undue distress. For instance, when Marcia Lewis, Monica Lewinsky's mother, became distraught under grand-jury questioning, she was deposed in private.

*Starr rejects the notion that the presidency as an institution was diminished by the investigation and sides with Supreme Court findings that a president can face a civil suit while in office. He says future presidents should handle such cases with out-of-court settlements, or Congress should fashion legislation to address the issue.

*Starr gave implicit advice that the new independent counsel, Robert Ray, should follow precedent in the investigation and not release any report or indictment, regarding Hillary Rodham Clinton during the election season. During the 1996 campaign, that meant holding off on any action that could affect the outcome once the campaign got within three months of election day.

*Starr says he wouldn't seek a nomination to the US Supreme Court, but would not shy away from it either, even if that meant that he would face a difficult confirmation fight in the Senate.

The following are excerpts from the one-hour Monitor breakfast, as well as an hour of informal conversations:

On the investigation:

My hope would be that a fair and balanced [review] would lead to this basic conclusion: that throughout the investigation, the career men and women and the person at the top did their best. They did an honest job under extraordinarily difficult circumstances. I am fully aware that the latter part of the investigation became part of the culture wars in this country. I think that's unfortunate, because the law is the law, and you have to obey the law. I am hearing time and again that it is quite OK to permit perjury and to obstruct justice, if the arena of the inquiry has to do with one's private life. That is a lawless perspective.

On mistakes:

This investigation was unique in the way that this independent counsel's jurisdiction was expanded time and time and time again, so that, as I became fond of saying toward the end: 'We were five independent counsels rolled into one.' I think that reflects a structural flaw in the [independent counsel] statute itself. I think it also represents an unfortunate judgment on my part of being willing to accept these expansions of jurisdiction. With the benefit of 20-20 hindsight, I would not have taken on the additional responsibilities, which I think gave rise to the public impression that this was a vendetta, which is untrue. The second aspect is one of public information: I deliberately chose a course of not holding press conferences and the like. By my silence, I think I allowed the impression to develop that this was, in fact, a vendetta.

On the press:

I viewed the media then, and I continue to view the media, as essentially a microphone: There's not a careful evaluation, distillation, winnowing of the quality or accuracy of the information that goes into the microphone. This is one of the reasons that I feel, in retrospect, it would have been better for me to have been at the microphone more. Because leaving the microphone to others, I think, in very substantial ways contributed to misunderstandings about what the investigation was doing, why it did what it was doing, and whether we were proceeding appropriately under Justice Department policy. We were. We were vindicated at every turn, and that was fact.

On the counterattack:

There's no question that damage was done, and I think that public confidence in the administration of justice was steadily eroded.

It was one of the evils of the independent counsel statute, in my judgment. It is a far better mechanism for the attorney general of the United States to be able to appoint an outside investigator or special counsel.... By that simple but basic device, the attorney general has the moral responsibility for making the determination of whether the special counsel is proceeding appropriately.

The spin cycle suggested that [the special prosecutor] isn't independent because he is of the opposite political party. That was ironically and paradoxically one of the assurances of the independence that's sought for by the statute: independent of the current administration.

On the referral to Congress:

We genuinely struggled in the office with respect to the appropriate way to fashion and frame the referral.... What we were really trying to do was to put forward the facts. This was our mindset: We want this to be absolutely bullet-proof. Then Congress, the House of Representatives, can do with this as they wish, including saying this does not merit further review. I was genuinely taken aback when the decision was made simply to put the referral on the Internet without any kind of screening whatsoever.

On the charge of being overzealous:

It's a totally bogus and bum rap.... The questions put to Mrs. Lewis caused her to be very distressed and distraught. Had I anticipated that, I would have done what we then immediately shifted to do: We discussed it with her counsel and we had a deposition. And that worked out very nicely.

But there was a sense that, 'My, does the prosecutor actually subpoena a loved one, a mother?' Yes, you do. Prosecutors do exactly that. And the one thing I was clearly determined not to do - when the stakes were so high, in as much that the president had denied these allegations - was to deprive this grand jury of relevant information.... I do not apologize for it; to the contrary, I would have viewed it as a dereliction of my duty if I had tried to cut corners because of concern over public appearances.

On the outcome:

To me the process has suggested that, at least at this juncture in our history, the American people want a stable presidency, but will continue to be adamant in ensuring that federal judicial officers do not engage in inappropriate criminal activity as it relates to their private affairs. I think that's the enduring lesson: Federal judges, you will continue to be removed for these kinds of crimes against the justice system, but we will allow additional latitude and protect the stability of the presidency.

On the presidency:

I think the presidency is a very strong institution and it will continue to be strong. There are still very significant protections for confidentiality of communications between the president and his advisers.... I felt, before I became independent counsel, that the suggestion that the president enjoy constitutional immunity from suit was extravagant, extreme, and utterly unfounded in our law. Nine justices of the Supreme Court came to the same conclusion. If a president finds himself being subjected to frivolous civil litigation, I think that you will find more and more plaintiffs who bring such litigation subjected appropriately to sanctions.

On President Clinton:

I would like to see the president simply come to terms with what he did ... to come to grips with the findings of Chief Judge Susan Webber Wright and to simply acknowledge forthrightly that 'I did these things.' But, alas, I have not seen that as yet.... Far be it from me to suggest a specific avenue of redress, but in some way, through some manifestation of genuine sorrow and acceptance of responsibility, the president should get himself right with the law.

On a Supreme Court nomination:

I would not seek it. I have never run a campaign for anything in terms of trying to find some form of public service. But if, and I personally think it's unlikely, a president says, 'I would like to nominate you for a position,' I would not run away from that because I was scared of a fight. I am never afraid of a fight. It would be a rather uproarious, lively confirmation process.... That's a political calculation. What we do know is that there are lots of wonderful judges around to appoint.